United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE.
Synter Resource Group, LLC and Plaintiff Asa Cross have filed
cross motions for partial summary judgment. Docs. 15; 16. The
Plaintiff alleges that the Defendant violated sections of the
Fair Debt Collection Practices Act (“FDCPA”) and
Georgia Fair Business Practices Act (“GFBPA”).
Doc. 5. For the following reasons, those motions (Docs. 15;
16) are DENIED.
case arises out of the Plaintiff's charges he incurred
from FedEx Freight after shipping items he sold to ANA
Instruments over eBay. In January 2016, the Plaintiff's
former employer allowed him to take discarded commercial
electronic testing equipment. Doc. 15-5 at 15:5-6, 31:1-33:7,
65:23-67:1. The Plaintiff kept the equipment in his
sister's garage for a few months while he removed some
equipment parts to build mini-racecars and fans; he
advertised the unused portions of the equipment for sale on
his personal eBay account. Id. at 11:21-13:3;
27:4-13; 69:1-15. During February and March, the Plaintiff
sold pieces of equipment to various buyers, and the money
from those sales was sent to his personal bank account. Doc.
15-5 at 101:5-12. Id. at 71:8-73:10. On May 3, the
Plaintiff contacted ANA; ANA agreed to buy a majority of the
equipment and sent money to the Plaintiff's personal
PayPal account, which PayPal then deposited to the
Plaintiff's personal bank account. Id. at
77:14-83:10, 95:17-19, 99:1-101:12; Doc. 15-6 at 17-29. ANA
also agreed to pay the cost of shipping and sent the
Plaintiff a FedEx Freight bill of lading. Docs. 15-5 at
83:15-91:21; 15-6 at 22. On May 6, the Plaintiff took the
equipment to the FedEx loading dock, and FedEx shipped the
equipment to ANA. Doc. 15-5 at 83:15-91:12. According to the
Plaintiff, after a FedEx employee at the loading dock
reviewed the bill of lading, the employee told the Plaintiff
that ANA was responsible for the payment of the shipment, and
that the Plaintiff did not owe FedEx for the shipment.
Id. at 91:6-12.
12, FedEx sent the Plaintiff a $1, 065.36 invoice for the
shipment stating that payment was due on May 27. Doc. 15-6 at
30-32. The Plaintiff states he did not receive the invoice
and thus did not make the payment. Doc. 15-5 at 101:13-103:4.
After receiving another invoice on July 23, the Plaintiff
called FedEx to ask “what was going on and how [he]
owed them anything, ” and learned that there was a
defect in the bill of lading that caused FedEx to consider
the Plaintiff responsible for the charges. Id. at
103:16-24; Doc.15-6 at 38. The Plaintiff tried unsuccessfully
to contact ANA about correcting the defect. Doc. 15-5 at
103:16-24. FedEx continued to send the Plaintiff monthly
invoices. Doc. 15-6 at 44-56.
November, FedEx placed the Plaintiff's account with the
Defendant, a receivables management company. Doc. 15-8 at 14.
On November 8, the Defendant sent the Plaintiff a demand
letter that complied with the FDCPA and GFBPA. Docs. 15-5 at
113:19-115:4; 15-6 at 62; 15-8 at 38. On December 5, the
Defendant left a voicemail on the Plaintiff's cell phone,
which said, “Hi this is Dominique[.] I'm calling
from Synter Resource, on behalf of FedEx. I'm trying to
contact the accounts payable regarding an outstanding invoice
forwarded to our office for collection.” Doc. 15-8 at 13.
On December 8, the Defendant sent a second demand letter.
Doc. 15-6 at 63. On December 11, the Plaintiff sent the
Defendant a letter disputing the debt and demanding
verification. Id. at 65-66. The Defendant claims
that it never received the Plaintiff's letter. Docs. 15-7
at 37:18-22; 16-5. On December 23, the Defendant left another
voicemail with the same message left on December 5. Doc. 15-8
at 13, 38. The Defendant continued to send demand letters to
the Plaintiff until January 2017. Doc. 15-6 at 50-56. On
January 17 and January 25, the Defendant left two more
voicemails, both of which said, “[W]e have an important
message from Synter Resource Group, this is a call from a
debt collector.” Doc. 15-8 at 13. On February 5, the
Defendant closed the Plaintiff's account. Doc. 15-7 at
November 11, 2017, the Plaintiff filed his complaint,
alleging that the Defendant violated the FDCPA and GFBPA by
(1) failing to identify itself as a debt collector in its
December 5 and December 23 voicemails, and (2) failing to
cease its collection efforts after receiving the
Plaintiff's December 11 letter requesting verification
and disputing the debt. Doc. 1. The parties now file cross
motions for partial summary judgment. Docs. 15; 16.
SUMMARY JUDGMENT STANDARD
judgment must be granted if “there is no genuine issue
as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Johnson v.
Clifton, 74 F.3d 1087, 1090 (11th Cir.1996). Not all
factual disputes render summary judgment inappropriate; only
a genuine issue of material fact will defeat a properly
supported motion for summary judgment. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
moving party “always bears the initial responsibility
of informing the district court of the basis for its motion,
and identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate
the absence of a genuine issue of material fact” and
that entitle it to a judgment as a matter of law.
Celotex, 477 U.S. at 323 (internal quotation marks
omitted). If the moving party discharges this burden, the
burden then shifts to the nonmoving party to go beyond the
pleadings and present specific evidence showing that there is
a genuine issue of material fact or that the moving party is
not entitled to a judgment as a matter of law. See
Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324-26.
This evidence must consist of more than mere conclusory
allegations or legal conclusions. See Avirgan v.
Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). Ultimately,
summary judgment must be entered where “the nonmoving
party has failed to make a sufficient showing on an essential
element of [his] case with respect to which [he] has the
burden of proof.” Celotex, 477 U.S. at 323.
FDCPA regulates and restricts debt collection practices to
prevent “the use of abusive, deceptive, and unfair debt
collection practices.” 15 U.S.C. § 1692. To
succeed on a FDCPA claim, the Plaintiff must prove that (1)
the Plaintiff has been the object of collection activity
arising from a “consumer debt” as defined by the
FDCPA; (2) the Defendant is a “debt collector” as
defined by the FDCPA; and (3) the Defendant has engaged in an
act or omission prohibited by the FDCPA. Reese v. Ellis,
Painter, Ratterre & Adams, LLC, 678 F.3d 1211, 1216
(11th Cir. 2012). “As a remedial statute, the
provisions of the FDCPA are to be construed liberally in
favor of the consumer.” Hart v. Vital Recovery
Servs., Inc., 2013 WL 12116580, at *5 (N.D. Fla. 2013)
(citing Ellis v. Gen. Motors Acceptance Corp., 160
F.3d 703, 707 (11th Cir. 1998)) (other citation omitted).
Defendant argues in its motion for partial summary judgment
only that the Plaintiff's transaction was not a
“debt” as defined by the FDCPA. See
generally Doc. 15-2. The Plaintiff argues in his motion
for partial summary judgment that (1) he is a consumer; (2)
the Defendant is a debt collector; (3) his debt is covered by
the FDCPA; and (4) the Defendant violated two sections of the
FDCPA, specifically § 1692e(11) and §
1692g(b).See generally Doc. 16-1. The
Defendant does not dispute that it is a debt collector or
that the Plaintiff is a consumer. Doc. 15-2 at 4; see
generally Doc. 17. But the parties have failed to show
that there is no genuine issue of material fact that the
Plaintiff's debt is covered by the FDCPA. Thus, the Court
will not address the Plaintiff's remaining arguments.
See Oppenheim ...